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With Californians increasingly turning against capital punishment, political forecasters say the vote on Prop 34 — the anti-death penalty initiative — could be extremely close.

In September, the polls had Prop 34 losing by a wide margin. However, a new poll by USC Dornsife and the Los Angeles Times shows the gap narrowing to just three percentage points — 45 to 42 percent.

When pollsters asked recent converts to the anti-capital punishment side what changed their minds, most cited capital punishment’s high cost and the increase in exonerations by DNA testing as major factors in their decision. If these many condemned people have been proven innocent, they reason, the judicial system is too imperfect to mete out such a final and permanent sanction.

The Debate

The death penalty debate has been raging for so long, most of us can recite the arguments chapter and verse by now. Deterrence, the cost, closure for victims’ families, eye-for-an-eye justice and the immorality of state-sanctioned killing are just a few of the ideas that have been screaming at each other for years, changing very few minds.

The imperfect system/too final penalty argument had also been cited by the anti-capital punishment crowd, but until recently was more theory than fact. This argument asked folks to imagine the torture of being mistakenly condemned and considered by society to be unworthy of living — to imagine themselves and their family in that hellish situation, marking the days off to the exact day of your erroneous-but-certain death — while the real killer remains at large.

The imperfect system argument, which often included references to overzealous prosecutors, ineffective counsel, railroading cops, mistaken eyewitnesses and faulty lab work was usually countered by the assertion that capital cases’ appeals and exacting checks and balances kept the innocent from being put to death.

Some even conceded that a very few wrongful deaths might slip by but considered the death penalty so valuable, a mistake now and then would be OK. However, I doubt these folks ever visualized members of their own family or themselves as potential death penalty martyrs. After all, people mistakenly charged with capital offenses, they reason, are probably criminals or lowlifes anyway, or they wouldn’t have found themselves in such an awful predicament.

Delbert Tibbs

In 1974, Tibbs was hitchhiking in Florida when he was stopped by police and questioned about a rape/murder that had occurred earlier that night. Although Tibbs was some 200 miles from the site of the crime — the brutal murder of a man and the rape of the man’s girlfriend — and did not match the victim’s original descriptions of the assailant, the police took Tibbs’ picture. The photograph was then sent to Fort Meyers, where the victim identified Tibbs as the rapist/killer. Although Tibbs had an alibi, the victim’s ID and a jailhouse informant’s claim that Tibbs had boasted of the crime were enough to send Tibbs to Florida’s death row.

Fortunately for Tibbs, the informant recanted his testimony after the trial, saying that he had lied for the prosecution in exchange for lenient sentencing in his own rape case. The recantation and the contradictory identifications by the rape victim eventually led to Tibbs’ exoneration in 1977.

Warning: If an overzealous prosecutor, mistaken identification and lying snitches can convict a hitchhiking seminary student who was nowhere near the crime, they can convict anyone.

DNA Testing and Curtis McCarty

Then the 80s brought us DNA testing. Tales of death row exonerations began appearing more frequently in the news. Such exonerations as the 2007 Curtis McCarty case in Oklahoma had people rethinking their position on the death penalty.

After spending 21 years behind bars — 19 on death row — McCarty became a free man. McCarty had been convicted twice of murdering 18-year-old Pamela Kaye Willis. His first conviction was overturned because of prosecutorial misconduct. However, the most damning evidence against McCarty from the first trial — proof that strands of hair collected at the murder scene were his — was presented at the second trial. The jury found him guilty and sentenced him to die again.

In 1995, an appellate court upheld McCarty’s conviction but ordered a rehearing on McCarty’s sentencing. Again, Curtis McCarty was sentenced to death — three times in all.

Then in 2000, while under investigation by the FBI for submitting phony forensic results, Joyce Gilchrist, Oklahoma City’s forensic analyst, was asked by McCarty’s attorneys to re-examine the hair fibers. She told them the samples collected at the scene had been lost or destroyed.

Based on the investigation’s finding of numerous instances of fraudulent testimony by Gilchrist, McCarty’s lawyers got permission to perform DNA tests on sperm collected from Willis’ body. Negative results of that test, plus Gilchrist’s unreliable forensics persuaded a judge to grant McCarty a third trial.

Armed with results of the sperm test, DNA tests proving that fingernail scrapings recovered from Willis’ body came from a different man, and suspected fraudulent forensics, McCarty’s lawyers asked a judge to vacate the convictions and to drop all charges against their client.

In 2007, McCarty was freed.

Lucky Guy

Despite having spent over two decades in prison for someone else’s crime, McCarty is a lucky man. He had dedicated and able attorneys fighting for him. Additionally, McCarty’s case happened to catch the eye of the Innocence Project, a group of lawyers and law students at Yeshiva University who assist inmates with cases that could benefit from modern DNA testing. Since 1992, the Innocence Project has helped remove 17 people from death row.

Death penalty supporters may point to McCarty’s eventual exoneration as proof of the system’s infallibility. However, that conclusion seems to overlook McCarty’s good fortune. For example, analyst Gilchrist had testified in thousands of cases over twenty years, including a number of capital cases. It was sheer luck that suspicions of her perjury habit surfaced while McCarty was still breathing. Also, McCarty was blessed with lawyers who gave a damn — not all do. Finally, the Innocence Project — as dedicated and effective as they are — are only able to get involved in a limited number of cases. Fortunately for McCarty, his case happened to be one.

The Ultimate Argument

There have been previous death row exonerations — 140 since 1973 — but apparently that number (3.5 per year) fell within the acceptable range for death penalty supporters. It also supported their belief that the system works, however belatedly.

But with DNA testing, the number of exonerations has jumped to five per year between 2000 and 2007. For an increasing number of voters — nationwide and in California — that’s just too many people. They realize that in many of these cases, the exonerations were the result of advocacy from outside the system, advocacy that very easily could have been focused on some other poor soul while the wheels of “justice” rolled over a number of innocent people.

On the other hand, they reason, life with no possibility of parole will keep killers off the streets for good, while allowing those wrongfully convicted a chance to fight their conviction if new evidence proves them innocent.

*

Remember how we used to argue about the death penalty? You said it was a deterrent; I said it was meted out unfairly. You said it saved money; I said it wasted money.

Then we began to see an increasing number of stories in the news about DNA-based death row exonerations facilitated by such organizations as the Innocence Project and we put our argument on hold.

Wonderful as those stories were, they left us with one very disturbing and inescapable question: If these many lives are being saved because of the efforts of outside groups with limited resource and staff, how many other innocent lives are going all the way to the gurney because the Innocence Project is busy saving somebody else… 6, 10, 100?